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2016 NY Slip Op 31678(U)
September 1, 2016
Supreme Court, New York County
Docket Number: 650029/2013
Judge: Jeffrey K. Oing
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various state and
local government websites. These include the New York
State Unified Court System's E-Courts Service, and the
Bronx County Clerk's office.
This opinion is uncorrected and not selected for official
publication.
[* 1]
-----------------1---------------------x
SLATED IP, LLC,
Index No.: 650029/2013
Plaintiff,
Defendants.
---------------------------------------x
JEFFREY K. OING, J.:
I
I'
Slated asserts
d~fendants
Liberm~n
Robert
("Liberman"), as
(first
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33
... '
'Intellectual Property
3 of 34
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33
IFDG:
~P
(Id., 4).
accru~d
interest, will
~riority
[* 4]
Page 4 of 33
IFDG.
"D~cember
1, 2012," at
which point "the Entire Note Balance shall become due and payable
without notice or demand" (Id.,
2).
(Id. at
3).
Section 7 of the Note, titled "Defaults; Remedies,"
provided:
(a) It shall be an event of default ("Event of
Default") under this Note if: (i) the Entire Note
Balance shall not be paid within ten (10) ~alendar d~ys
of the date that it is due and payable ....
Upon the
happening of any such Event of Default beyond all
applicable notices and opportunities to cure, the
entire indebtedness with accrued interest thereon due
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33
(Id. at 2).
Legal Analysis
Mtn Seq. No. 005
den~ed
due to
Anderson proffers a
Anderson represents
~hat
$259~025
(Anderson -
IFDG neither
[* 6]
Page 6 of
33
29).
agre~d
under the Note to no later than 5:00 p.m. on Monday, December 17,
2012" (Id.,
31).
promis~ory
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33
'
~there
'
Slate~
allegedly
Slated
<:II
(Liberman Aff.,
[* 8]
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33
7(J)-(K)
and~
8).
Dept 1999]; Roney v Janis, 77 AD2d 555, 557 _[1st Dept 1980] [fraud
claim "cannot be based upon a statement of future intentions,
promises or expectations which were
spe~ulative
or an expression
s~pported
by intellectual property
.'
law and owned by Slated, the efficacy 6f the software and its
suitability to IFDG's needs, and the nature of Slated's
95 AD3d
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Page 9 of
cause of action.
A review of defendants'
th~rd
33
counterclaim for
63-68)
~~
a factual issue.
Nonetheless, defendants maintain that a factual issue exists
as to whether there was
and the AP Agreement.
to the software are implicitly part of that asset .... ", (Id. at
104) .
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33
( "B-Side") on
That agreement
'8
and Ex. B;
~also
which were assigned from B-Side to Slated on March 16, 2010, and
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33
In addition,
Pat~rnot
represents in
~~
10-11).
This
1).
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i ss11e
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33
The first,
fifth,
~n
de~ects,
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Page 13 of
Accordingly,
reasons~
33
o~
The Note
inter~st
(Id.,
1) .
Thus, although
on this
14 of 34
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33
7 at 2-3).
I
7. 5) .
out-of-po~ket
costs and
i~.
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33
cont~act
claim
Moreover, as
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~~
[* 16]
Page 16 of
81-85).
33
At
p~rsonally
In opposition, and
Slated "was always available," but claim that "IFDG had more than
20 good and sufficient reasons not to pay it" (Defendants' Opp
Brief at 19).
Generally, "a corporation exists independently of its
owners, who are not personally liable for its obligations, and
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33
"Factors
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33
is, two weeks after the Maturity Date of the Note and four days
after they caused IFDG to default on its payment obligations
under the Note (Amended complaint, !! 34, 52; Anderson Aff., Ex.
C,
2).
(Amended
Slated claims
49).
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33
IndiePix Films,
Inc., and
54) .
These allegations sufficiently state a claim for alter ego
liability (Holme v Global Mins. & Metals Corp., 22 Misc 3d
1123(A), 2009 NY Slip Op 50252(U), *6 [Sup Ct, NY County
2009] ["allegations that the Individual Defendants transferred
money, shares, and assets to enrich themselves and their other
companies, including [a co-defendant entity], while stripping
Global of its assets and making it judgment proof, sufficiently
allege[d] a wrong or injustice against [the plaintiff] which
resulted in his injury"], affd 63 AD3d 417
Therefore,
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33
(Id. at
It was a messy
"there were too many people on staff and the amount of payroll
taxes were too high" (Id. at 81-82, 86).
Although Alexander
conceded that IFDG never paid the second $250,000 owed under the
AP Agreement, the payment due on December 1, 2O12 was not a
factor in defendants' decision to shut down IFDG.
164, 167).
(Id. at 163-
Alexander testified:
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Page 21 of
(Id. at 167-168).
33
It was a
and brand name reasons and that sort of thing" (Id. at 87).
Goldfarb testified that he left IFDG for "financial reasons"
(Anderson Aff., Ex. G at 40).
Accordingly, Slated's
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33
~~
48(A)-(G)).
a~y
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33
granted~
and it is dismissed.
On
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33
~hallenge
JHO
./
refer~e
may
Under
CPLR
3104(d) provides that "[a]ny party ... may apply for review of an
order made under this section by a referee,u
The 3/4/15 Order was issued in the context of JHO
Gammerman's supervision of discovery, ordered by this Court on
December 18, 2013
Therefore, JHO
'
Gammerman's conclusion concerning
discovery is deemed an order
(CPLR 3104(c)).
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33
For these
26 of 34
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33
r'\
Accordingly,
4 and
The proposed
The proposed
su~ra,
in
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33
~~
56~59,
75).
th~
AP Agreement (Id.,
63-74, 76).
~nd
~~
77-82).
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33
Nor do defendants
As discussed,
66 AD3d at
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33
Moreover, as discussed,
114).
<JI
Similarly,
r
r
<JI
119).
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rep~esentations
I
j
I
f
and
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33
<JI
121).
(RGH Liquidating
Trust v Deloitte & Touche LLP, 47 AD3d 516, 517 [1st Dept 2008]).
The fraud-based claims are also legally insufficient for failure
to allege justifiable reliance (HSH Nordbank AG, 95 AD3d at 194195; see also Karfunkel v Sassower, 105 AD3d 459, 460 [1st Dept
2013] [plaintiff's failure "to inquire about the specifics of the
transaction or to conduct due diligence ... preclude[d] his claim
of justifiable reliance on defendant's alleged
representations as a matter of law"]).
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33
<JI<JI
stated in
detail~]).
~n
its entirety.
Accordingly, it is hereby
ORDERED that defendants' motion (mtn seq. no. 004) to vacate
the note of issue is denied; and it is further
ORDERED that the plaintiff's motion for summary judgment.
(mtn seq. no. 005) is resolved as follows:
(1)
unt~l
the date of
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this~cause
33
of action are
the~arties'
(2)
defendants'
~ffirm~tive
LLC;
are dismissed;
(3)
cau~es
of
.,
action are d{smissed;
(4)
fees,
by CPLR 4317(b);
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33
006) to
const~tutes
of the Court.
Dated:
_JEFFREY K. OING
1:::..,..,.
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J.S.c.